The Racial Disparities in 'Stand Your Ground' Laws

“I have a son. And I care as much for my son as y’all care for y’all’s. But my son does not walk the same path as yours does!” state Senator Stephanie Flowers argued during an impassioned floor debate on gun legislation at the Arkansas State Capitol in March of this year. Senator Flowers decried proposed legislation sponsored by Republican colleagues, which would remove “a duty to retreat” in self-defense cases. She denounced the bill and the state Judiciary Committee’s efforts to limit debate on its merits. She referenced the killing of Trayvon Martin, and the failure of Florida courts to hold George Zimmerman accountable for his tragic death. In so doing, she made a case for why stand your ground laws are dangerous for people of color.

While her efforts stalled the passage of stand your ground legislation in Arkansas, they also brought renewed attention to the inherent dangers of stand your ground laws. Flowers hinted at how Martin’s death serves as a harbinger for things to come. More particularly, stand your ground laws pose latent perils to Black people, as racial disparities in their application allows for the disproportionate justification of Black death at the hands of a white person in confrontation.

Rarely do these laws allow Black people to invoke the laws in self-defense.

Beginning with Florida in 2005, states across the country ratified such legislation. Most US citizens, however, were not aware of the fatal implications of stand your ground laws until Sanford Police cited statute §§776.013 as a basis for their failure to arrest George Zimmerman in 2012. Florida’s stand your ground law affords its citizens the legal right to “stand his or her ground” and meet force with force, including “deadly force” if the citizen “believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm...or to prevent the imminent commission of a forcible felony.” The law not only grants wide latitude to Florida’s citizenry during confrontations, but it also allows responding police officers to decide whether to make an arrest in reference to the killing. Essentially, that discretion often hinges on whether police officers believe a self-defense claim raised by the killer.

In those tense moments following a killing, law enforcement utilizing stand your ground laws must decide if there is sufficient evidence to contradict a self-defense claim at the scene. Police have said that the laws prohibit them from making an arrest in certain scenarios. Prior to the enactment of stand your ground legislation, police officers in Florida and other similarly situated states typically deferred to the courts to make this determination. In instances where individuals invoke stand your ground, the police elect to make the determination themselves. Nearly all stand your ground laws ratified afterward follow similar patterns, which distort time-honored components of criminal law.

While the stand your ground statute incorporates numerous rudimentary components of criminal law, it is inherently problematic. To some degree, these statutes derive from legal notions of justification and affirmative defense. Every jurisdiction within the United States has affirmative defenses (e.g. self-defense, insanity, etc.) for charges related to unlawful killings (e.g. first degree murder, second degree murder, manslaughter, etc.), which provide justification for the most heinous of charges. Real justification is rare and rooted in age-old understanding of human interaction. For example, jurisdictions across the nation have routinely affirmed one cannot be held liable for their actions, if they lack the capacity to fully understand their ramifications, and/or it involves self-defense against the threat of severe bodily harm or death.

Legislators presumably drafted their stand your ground statutes to circumvent this process. Yet this legislative maneuvering illustrates the law’s fatal flaw. In allowing for police officers at the scene of a confrontation to determine, with finality, whether an unlawful killing has transpired turns the police into judge and jury, while turning private citizens into executioner.

The inherent danger of stand your ground laws lies in the wide latitude they afford individuals during confrontations, and also the enhanced discretion they allow responding police officers to exercise.

Considering the flagrant racial bias in how stand your ground laws are routinely applied, Senator Flowers' concerns are warranted. Her position as the “only person of color [in the legislative chambers]” gives her a unique perspective on stand your ground laws, which often amount to a license to kill Black people without ever having to stand trial for it. There is growing consensus around this notion.

Civil Rights organizations, scholars, and victims rights advocates share Senator Flowers’ concern that the laws are rarely applied in a way that favors Black people. Sherrilyn Ifill, president and director-counsel for the NAACP Legal Defense and Educational Fund, presented testimony in a hearing in 2013 on stand your ground. "Even those who do not consciously harbor negative associations between race and criminality are regularly infected by unconscious views that equate race with violence,” she said. Christina Swarns, director of the NAACP Legal Defense Fund’s Criminal Justice Project appeared on MSNBC around the same time to identify further issues with stand your ground.

Data supports their conclusions. A study published in the Social Science & Medicine journal found quantifiable racial bias in Florida’s application of stand your ground laws. The study also found the race of the victim to be a predictor of conviction for the defendant, where convictions were more likely to happen in cases of white victims compared to non-white victims. For his August 2012 article “Do Stand Your Ground Laws Worsen Racial Disparities?” the Urban Institute’s John Roman examined FBI supplementary homicide data from 2005-2009. He concluded that when white defenders kill Black attackers, “the justifiable homicide rate is 34 percent;” when the defender is Black and the attacker white, the shootings are determined to be “justifiable” in only 3 percent of cases. Everytown For Gun Safety similarly found that when “white shooters kill Black victims, the resulting homicides are deemed justifiable 11 times more frequently than when the shooter is Black and the victim is white.”

High-profile cases like the ones of Marissa Alexander, Deionna Young, and Markeis McGlockton have further signaled racial disparities in the application of stand your ground laws. These laws, Roman concluded, "make racial disparities ‘more pronounced’ and are ‘bad laws’” which often justify the killing of Black people — who are rarely allowed to evoke it in self-defense.

Trayvon Martin was determined to have committed an act that effectively warranted his killing. In the absence of a fair proceeding (because police officers at the scene believed George Zimmerman’s claim), a jury subsequently acquitted Martin’s killer. It is a troubling proposition with disastrous implications across the nation. While the authors of stand your ground laws did not load and cock the Kel-Tec PF9 9mm handgun for Zimmerman on the night of February 26, 2012, they did establish the means for him to roam free after the heinous killing. Legislators nationwide have created potential for countless other similar scenarios. It leaves Black people standing on dangerous ground.

About the Author

Timothy Welbeck is a Civil Rights attorney, professor of African American Studies, author, and hip-hop artist. He teaches an array of courses at Temple University and Thomas Jefferson University that examine interconnected themes in the African American experience, law, and politics. Timothy's work has appeared in various media outlets, such as the BBC Radio 4, The Philadelphia Inquirer, NPR, The Huffington Post, REVOLT TV, et al.